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68. The Board imposed a maximum civil penalty of$12,000 on RFES. The Board's <br /> Order does not contain any discussion of how the Board arrived at this penalty,of any exacerbating <br /> or mitigating circumstances the Board considered in setting this penalty, or explanation of why the <br /> Board believed a maximum penalty was appropriate under the circumstances. <br /> COUNT <br /> THE ORDER EXCEEDS DRMS' STATUTORY AUTHORITY <br /> (Colo. Rev. Stat. § 24-4-106(7)(b)(IV)) <br /> 69. RFES reasserts and incorporates by reference the preceding paragraphs 1 to 68. <br /> 70. The duties and powers of an administrative agency are determined and limited by <br /> the statutes under which the agency is created,and actions of an administrative agency that exceed <br /> the scope of those delegated duties and powers are void. <br /> 71. The Colorado Mined Land Reclamation Act, Colo. Rev. Stat. § 34-32-101 to -127 <br /> ("MLRA"), represents both the source and limit of DRMS' and the Board's authority to regulate <br /> reclamation of mining operations within Colorado. Permitting requirements that exceed the scope <br /> of the authority the MLRA grants are null and unenforceable. <br /> 72. Colo. Rev. Stat. § 34-32-109 requires operators engaged in a "mining operation" <br /> obtain a reclamation permit. <br /> 73. The term "mining operation" includes "milling" when milling occurs on "affected <br /> lands." <br /> 74. "Affected land" means the surface of an area within the State of Colorado where a <br /> mining operation is being or will be conducted, which surface is disturbed as a result of such <br /> operation. <br /> 75. The Board determined that RFES was engaged in a mining operation by milling ore <br /> and mine tailings.The Board appears to have determined that RFES' Facility constituted"affected <br /> lands"because a mining operation was being conducted on the property and because mining waste <br /> and equipment capable of processing mining waste was stored on the property. <br /> 76. Even if milling were occurring on RFES' Facility, milling is only a "mining <br /> operation" when it occurs on "affected land." The Board by contrast, determined that "affected <br /> land" exists wherever a mining operation occurs. If the Board were correct, there could never be <br /> milling that did not constitute a "mining operation," because the very existence of the milling <br /> would make the land on which the milling occurred"affected land."This circular definition would <br /> render meaningless the express distinction between milling on affected lands and milling on non- <br /> affected lands articulated in Colo. Rev. Stat. § 34-32-103(8). <br /> - 10- <br /> 4884-8560-1078.2 <br />